Title II of the bill provides for immunity of service providers who have cooperated with
the government in facilitating surveillance under the FISA. The Senate rejected an amendment
to strike the immunity for service providers language. It also rejected
Sen. Arlen Specter's (R-PA) proposal to provide
substitution of the government for service providers, rather than immunity, in civil actions
against service providers.

The Senate also approved a cloture motion.

The Senate rejected
Amendment No.
3910 offered by Sen. Dianne Feinstein
(D-CA) by a vote of 57-41. See,
Roll Call No. 13. A three fifths majority was required for approval of this amendment.
This amendment provides a statement of the exclusive means by which electronic
surveillance and interception of certain communications may be conducted.

The Senate rejected
Amendment No.
3912 offered by Sen. Feingold by a vote of 37-60. See,
Roll Call No. 16. This amendment modifies the requirements for
certifications made prior to the initiation of certain acquisitions.

The Senate rejected
Amendment No.
3927 offered by Sen. Specter by a vote of 30-68. See,
Roll Call No. 17. The amendment provides for the substitution of the U.S.,
rather than immunity, in certain civil actions.

The Senate rejected
Amendment No.
3919 offered by Sen. Feinstein by a vote of 41-57. See,
Roll Call No. 18. This amendment provides for the review of certifications
by the Foreign Intelligence Surveillance Court (FISC).

On February 11, 2008, Ed Black, head of the Computer
& Communications Industry Association (CCIA), sent a
letter
to Senators urging them not to include retroactive immunity in FISA reform
legislation. He expressed "opposition to granting retroactive immunity, amnesty,
or pardon to companies accused in United States courts of serious violations of
law in connection with extensive wiretapping of U.S. citizens".

Black wrote that "prior to any grant of retroactive immunity, a full
accounting of the actions taken by key government officials and the major
carriers is essential. The facts about the nature and scope of cooperation need
to be understood, as do the motives and rationales of the various public and
private officials involved."

On February 8, 2008, Timothy Lee, an
Adjunct Scholar at the Cato Institute, wrote an
essay titled "The
Surveillance Scam". He wrote that former President Bill Clinton, like President
Bush, "was also an ardent supporter of increased wiretapping authority", who
sought expanded wiretap authority in 1996. However, the Congress did not pass a bill
at that time.

Lee argues that "Today's Democratic Congress has been far less protective of Americans'
privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that
Congress approve expanded wiretapping powers before going on vacation. This time,
Congressional leaders showed few qualms about ``rushing to judgment.´´ Indeed, both houses
of Congress approved the White House's preferred legislation with minimal changes within
three days of its introduction."

Lee also argues that the bill passed last August,
S 1927 [LOC |
WW],
the "Protect America Act", "allows the administration to ``authorize´´
eavesdropping programs for a year at a time. That means that the government's
various warrantless surveillance activities will continue to operate at least
through August. And of course, if the need for new wiretaps arises after the act
sunsets, the administration still has the opportunity to file for warrants"
under the FISA, and that the FISA "even allows the government to begin
surveillance first and apply for an emergency warrant after the fact."

FCC Releases Order and NPRM on Cable
Ownership Cap

2/11. The Federal Communications Commission (FCC)
released the
text [96 pages in PDF] of its Fourth Report and Order and Further Notice of Proposed
Rulemaking (4th R&O and FNPRM) in its proceeding regarding cable ownership caps.

The R&O portion of this item sets the FCC's cable horizontal ownership limit to
"prohibit cable operators from owning or having an attributable interest in cable
systems serving more than 30 percent of multichannel video programming subscribers
nationwide".

The NPRM portion of this item requests comments on the following: "(1) whether to
retain the single majority shareholder attribution exemption, which currently applies to
the cable and broadcast ownership rules; (2) whether, under the cable attribution rules, a
limited partner may sell programming to the partnership and retain insulation; and (3)
whether the Commission should clarify certain aspects of the cable Equity Debt (“ED”)
attribution rule, as it did for the broadcast Equity/Debt Plus attribution rule."
(Footnote omitted.)

It also requests comments on "an appropriate channel occupancy limit".

Kyle McSlarrow, head of the National Cable &
Telecommunications Association (NCTA), stated in a
release
on December 18, 2007, that "in 2001, the U.S. Court of Appeals soundly rejected on First
Amendment grounds the precise cable ownership cap that the Commission adopted
again today. The Court of Appeals found such a cap to be unjustified and out of
touch with the competitive marketplace as it existed six years ago. In the
intervening years, competition among satellite, telephone and cable companies
and the variety and amount of independent programming has only increased.

McSlarrow added that "We are confident that a court will again reject conclusions
driven by a political agenda to target the cable industry that are completely at odds with
the realities of a dynamic and competitive marketplace that is providing greater consumer
choice and value."

On March 2, 2001, the U.S. Court of Appeals
(DCCir) issued its
opinion in
Time Warner Entertainment v. FCC overturning the FCC's cable ownership caps on
First Amendment grounds. The opinion is reported at 240 F.3d 1126.

That case is Time Warner Entertainment, Petitioner v. Federal
Communications Commission and United States of America, Respondents; BellSouth,
et al., Intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 94-1035, consolidated with 95-1337,
99-1503, 99-1504, 99-1522, 99-1541, 99-1542, and 00-1086.

FCC Commissioner Michael Copps wrote
that "Although the percentage cap remains the same, the underlying economic justification
is quite different and is, I believe, completely responsive to the issues raised by the D.C.
Circuit Court."

FCC Commissioner Jonathan
Adelstein wrote that the order's "focus is trained particularly on the potential
influence of cable operators on the upstream programming market. The Order finds that a
large cable operator would have the power to significantly undermine the viability of a
reasonably popular programming network by refusing to carry it, despite the competitive
pressures of DBS and other providers. It is apparent that video programming delivery involves
an intricate web of relationships, and this Order attempts to boil these down into an
appropriate horizontal limit. Given the contentious nature of this proceeding and its
history in the courts, we put our best foot forward in defense of this difficult
task."

FCC Commissioner Robert McDowell
dissented. He argued that this is the same order the the DC Circuit overturned
seven years ago. Moreover, he wrote, it "goes out of its way to remain ignorant of
current market conditions which obviate a need for a cap. And the order is
wanting for any sustainable legal or evidentiary justification to trample on the
First Amendment, in defiance of the court’s 2001 warning."

He wrote unequivocally. "This order will be overturned by the D.C.
Circuit." (Emphasis in original.)

McSlarrow also wrote that "We are
pleased that a majority of Commissioners again rejected a plan to consider a
multicast must carry mandate. Consumers will be better served if we could all
focus on getting ready for the digital broadcast transition instead of
repeatedly having to reject stale ideas that would harm consumers, undermine the
digital transition and violate the Constitution."

Initial comments in response to the NPRM portion of this item will be due 30 days after
publication of a notice in the Federal Register. Reply comments will be due within 45 days
of such publication. As of the February 12, 2008, issue of the Federal Register, this notice
had not yet been published.

On September 11, 2007, the FCC adopted a Third Report and Order and Third
Further Notice of Proposed Rulemaking regarding the mandatory cable carriage of
digital broadcast television signals after the conclusion of the digital
television (DTV) transition. The FCC elaborated that cable operators can "comply
with the viewability requirement by choosing to either: (1) carry the digital
signal in analog format, or (2) carry the signal only in digital format,
provided that all subscribers have the necessary equipment to view the broadcast
content."

The FCC released the
text [68
pages in PDF] of this item on November 30, 2007. This proceeding is titled "Carriage
of Digital Television Broadcast Signals, Amendment to Part 76 of the Commission’s Rules".
This order is FCC 07-170 in CS Docket No. 98-120.

He wrote that "It was with great disappointment that I heard the news Monday that
certain cable programmers are attempting to derail the digital television transition (DTV)
with a lawsuit that could prevent many cable consumers from receiving local broadcast
television stations after the transition. We agree with the Commission that its
``viewability´´ rules are required by the 1992 Cable Act and are essential to protecting
the 40 million cable subscribers with analog cable."

Rehr added that "without rules ensuring the viewability of must-carry stations,
many small, foreign language, and religious broadcast stations will go dark on
some cable systems after the transition, disenfranchising millions of dedicated
viewers that rely on cable companies to provide local stations without
discrimination or material degradation. This would not be an acceptable outcome."

SEC Pursues Securities Lawyer
of E-Mail
Pump and Dump Offerers

2/7. The Securities and Exchange Commission (SEC)
instituted and simultaneously settled an administrative action against Kenneth M. Christison,
a member of the state bar of California, alleging violation of federal securities laws in
connection with his issuance of opinion of counsel letters to the issuers of securities that
these securities were exempt from registration requirements.

The SEC further alleged that Christison knew or should have known that the securities
were not exempt.

The SEC has already taken action against the issuers of these securities for violation
of federal securities laws in connection with their fraudulent use of spam e-mails to pump
and dump these securities.

Linda Thomsen, Director of the SEC's
Division of Enforcement stated in a
release that
"Today's action demonstrates that even after we stop those who profit from
fraudulent schemes, we continue to pursue other individuals, especially
attorneys and other gatekeepers who are enablers behind the scenes".

Christison consented to the entry of a cease and desist order, without admitting or
denying any allegations. See also,
order instituting cease
and desist proceeding [7 pages in PDF].

The joint report summarizes 34 bills that pertain to protecting children in the context
of computers and internet use, including child pornography, indecency, child predation,
children's privacy, and violence and video games. The report covers bills that address social
networking sites, domain names, parental controls, and age verification.

The CDT also released its own
analysis [15 pages
in PDF]. It wrote that many of these bills "would not be effective child protection
measures and would raise very serious policy and constitutional problems."

The PFF's Thierer also released his own
analysis.
He wrote that "it is important for those concerned about speech and
privacy rights to remain vigilant". Thierer concluded that "While Congress is
right to take steps to protect children against actual harms -- namely,
child predation and child pornography -- it would be unwise for lawmakers to
expand the censorial schemes of the past. The better approach for potentially
objectionable, but legal, content is to use education and empowerment-based
strategies. Again, parents already have a multitude of tools, controls, and
information at their disposal to establish their own household standards
regarding acceptable media content."

The CDT analysis does express support for several of the bills. The CDT backs
several education bills, HR 3461
[LOC |
WW], the
"SAFER-NET Act", S 2344
[LOC |
WW],
the "Internet Safety Education Act", and S 1965
[LOC |
WW],
"Protecting Children in the 21st Century Act". It also backs HR 719
[LOC |
WW], the
"Sex Offender Internet Usage Limits", and HR 3845
[LOC |
WW], the
"PROTECT Our Children Act".

It is also possible that some of these bills have been introduced for purposes other
than, or in addition to, obtaining enactment into law. First, bills are sometimes introduced
for the purpose of prompting action outside of the Congress, such as pressuring companies or
industry sectors that would be affected by enacted legislation to alter their business
practices, or to organize or enhance industry self-regulatory initiatives.

Federal and state legislative activity may have already played a
role in prompting MySpace to reach an agreement with state attorneys general
regarding self policing of its social networking web site. See,
story titled
"MySpace and State AGs Sign Document Regarding Online Safety" in TLJ Daily
E-Mail Alert No. 1,701, January 16, 2008.

Bills are also sometimes introduced in an attempt to influence subsequent agency rulemaking
proceedings and administrative enforcement actions. Bills are also sometimes introduced as
attempts to induce law enforcement agencies and prosecutors to investigate and prosecute more
cases related to the subject matter of the legislation.

Also, introduction, cosponsorship, and floor votes in favor of bills allow members of
Congress to publicly take positions. Child protection bills may be an easy way to build a
legislative record of apparent concern for children. Such position taking may be useful in
a member's election contests if opponents or potential opponents site that member's votes
or positions on other matters affecting children, such as children's health care, education
funding, or abortion.

Some of the introduced bills were drafted without expertise. Some of the bills approved
by the full House received no hearing. Some received no subcommittee or even full committee
markup. It is already the second month of the second session, yet none of these 34 bills
have been approved by both the House and Senate. And, as Thierer states in his analysis,
some of these bills are just "silly". These are all indicia of bills introduced
with lessened expectations of enactment into law.

2/12. Ken Ferree wrote
a short essay
[PDF] titled "Judgment Day" in which he criticizes the
Federal
Communications Commission's (FCC) antitrust merger review process. He wrote that it
has "slowed nearly to a standstill" and that "needlessly
delaying pro-competitive combinations deprives consumers of the benefits that
flow from free and full competition". Ferree is head of the
Progress & Freedom Foundation (PFF). He was
Chief of the FCC's Cable Services Bureau when Michael Powell was FCC Chairman.

2/7. The Federal
Communications Commission (FCC) adopted and released an
order [5
pages in PDF] that denies petitions to reject or suspend AT&T's proposed revisions to
tariffs, on behalf of various of its subsidiaries, that withdraw broadband services from
its tariff, including "Frame Relay, ATM, Ethernet, Remote Network Access, SONET, Optical
Network and Wave-Based services, with the exception of certain Frame Relay and ATM services
operating below 200 Kbps in each direction." Time Warner Telecom, Comptel, and Sprint
Nextel filed the petitions. This order is FCC 08-42.

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information page.

The House will meet at 12:30 PM for morning hour
debate, and at 2:00 PM for legislative business. The House will consider
numerous non-technology related items under suspension of the rules. Votes
will be postponed until 6:30 PM. See, Rep. Hoyer's
schedule for week of February 11.

The Senate will meet at 2:00 PM. It will
resume consideration of S 2248
[LOC |
WW], the
"Foreign Intelligence Surveillance Act of 1978 Amendments Act of
2007".

Day two of a three day conference hosted
by the Institute for Defense and Government Advancement (IDGA) titled "Biometrics
for National Security and Defense Conference". Hugo Teufel, Chief Privacy Officer
of the DHS, will speak at 8:15 AM. He will address implementation of the Privacy Act
of 1974 on biometric storage system of records. Location: Hilton Arlington, Ballroom I and
II, 950 North Stafford St., Arlington, VA.

The House will meet at 10:00 AM for legislative
business. The House may consider legislation to reform the Foreign Intelligence
Surveillance Act (FISA) or to extend the S 1927
[LOC |
WW], the
"Protect America Act". See, Rep. Hoyer's
schedule for week of February 11.

9:30 AM. The House Commerce
Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a
hearing titled "Status of the DTV Transition: 370 Days and Counting".
The witnesses will be
Kevin Martin (FCC
Chairman), Meredith Baker (acting head of the NTIA), Kyle McSlarrow (head of
the National Cable & Telecommunications Association), David Rehr (head of the
National Association of Broadcasters), Ron Bruno (head of the Community
Broadcasters Association), Mark Jackson (President of Echostar), Tom Romeo
(IBM), Laurence Harris (Radio Shack), and Chris Murray (Consumers Union). The hearing will be webcast by the HCC.
Location: Room 2123, Rayburn Building.

2:00 PM. The Open Internet Coalition (OIC)
and Save The Internet Coalition will host a news briefing by
teleconference titled "Net Neutrality in Congress and at the
FCC". The speakers will include Markham Erickson (OIC), Mark
Luker (Educause), Paul Misener (Amazon), Ben Scott (Free Press),
Gigi Sohn (Public Knowledge), and Rick Whitt (Google). To
participate, call 888-872-6750. The participant number is
34933004. For more information, contact Eric London (OIC) at
202-986-9805 or elondon at tsd dot biz.

Day one of a three day conference hosted by
the Institute for Defense and Government Advancement (IDGA) titled "Biometrics for
National Security and Defense Conference". Location: Hilton Arlington, Ballroom I
and II, 950 North Stafford St., Arlington, VA.

EXTENDED TO MARCH 14.Deadline to submit initial comments to the
Federal Communications Commission (FCC) regarding the
Petition for
Declaratory Ruling [33 pages in PDF] filed by the
Public Knowledge (PK) and other groups on
December 11, 2007, pertaining to the regulatory status of text messaging services,
including short code based services sent from and received by mobile phones.
The PK requests that the FCC declare that these services are governed by the
anti-discrimination provisions of Title II of the Communications Act. See,
story titled
"Verizon Wireless and Net Neutrality Advocates Clash Over Text Messaging" in
TLJ Daily E-Mail Alert No.
1,647, September 27, 2007. See also,
letter from Verizon
Wireless to NARAL dated September 27, 2007, and NARAL's
web
page titled "NARAL Pro-Choice America Wins Fight over Corporate Censorship".
See also, story titled "Public Knowledge Asks FCC to Declare that Blocking and
Refusing to Carry Text Messages Violates Title II" in
TLJ Daily E-Mail Alert No.
1,686, December 11, 2007. This proceeding is WT Docket No. 08-7. See,
notice in the Federal Register, January 28, 2008, Vol. 73, No. 18, at Pages
4866-4867. See,
notice [PDF] of extension, DA 08-282.

Thursday, February 14

The House will meet at 10:00 AM for legislative
business. The House may consider legislation to reform the Foreign Intelligence
Surveillance Act (FISA) or to extend the S 1927
[LOC |
WW], the
"Protect America Act". See, Rep. Hoyer's
schedule for week of February 11.

10:00 AM. The Senate Judiciary
Committee (SJC) may hold an executive business meeting. The agenda includes
consideration of several bills, including S 2449
[LOC |
WW], the
"Sunshine in Litigation Act of 2007", and S 352
[LOC |
WW], the
"Sunshine in the Courtroom Act of 2007". The agenda also includes
consideration of the nominations of Kevin O'Connor (to be Associate Attorney General)
and Gregory Katsas (to be Assistant Attorney General in charge of the Civil Division).
The SJC rarely follows its published agendas. See,
notice.
Location: Room 226, Dirksen Building.

10:00 AM. The House Science
Committee will hold a hearing titled "Funding for the America COMPETES Act in
the FY2009 Administration Budget Request". The witness will be John Marburger,
Director of the Executive Office of the President's (EOP) Office of Science
and Technology Policy. Location: Room 2318, Rayburn Building.

10:00 AM. The House Oversight and
Government Reform Committee's Subcommittee on Information Policy, Census, and National
Archives will hold a hearing titled "Federal IT Security: A Review of
H.R. 4791". Location: Room 2154, Rayburn Building.

Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
its two notice of proposed rulemakings (NPRMs) regarding service rules for the Wireless
Communications Service (WCS) and for terrestrial repeaters used in conjunction with the
Satellite Digital Audio Radio Service (SDARS). These items are FCC 07-215 in WT Docket No.
07-293 and IB Docket No. 95-91. The FCC adopted these items on December 17, 2007, and
released them on December 18, 2007. See,
notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at
Pages 2437-2440.

Friday, February 15

The House will meet at 10:00 AM for legislative
business. The House may consider legislation to reform the Foreign Intelligence
Surveillance Act (FISA) or to extend the S 1927
[LOC |
WW], the
"Protect America Act". See, Rep. Hoyer's
schedule for week of February 11.

2:00 - 4:00 PM. The Department of State's (DOS) International
Telecommunication Advisory Committee (ITAC) will hold one of a series of meetings to
discuss the U.S. positions for the March and April 2008 meeting of the ITU-T Study Group 3
and related issues of the international telecommunication regulations. See,
notice in the Federal Register, February 4, 2008, Vol. 73, No. 23, at Page
6547. Location?

Deadline to submit reply comments to the
Federal Communications Commission (FCC) in
response to its notice of proposed rulemaking regarding the establishment of a
Commercial Mobile Alert System (CMAS). This NPRM, which was adopted and
released on December 14, 2007, is FCC 07-214 in PSHSB Docket No. 07-287. See,
notice in the Federal Register, January 3, 2008, Vol. 73, No. 2, at Pages
545-607. The relevant FCC proceeding is numbered CG Docket No. 03-123.